Re Kilby and Ors - [2016] NSWSC 1433

Supreme Court

New South Wales

Medium Neutral Citation: Re Kilby & Ors [2016] NSWSC 1433
Hearing dates: 7 October 2016
Date of orders: 07 October 2016
Decision date: 07 October 2016
Jurisdiction: Equity
Before: Slattery J
Decision:
Administration de bonis non of the estate of the late Stanley Henry Kilby granted to the plaintiffs. Order the plaintiffs’ costs of the application be paid out of the estate on the indemnity basis.

Catchwords: WILLS, PROBATE AND ADMINISTRATION – three plaintiffs, deceased’s daughter and two granddaughters, are beneficiaries of deceased’s estate – probate of deceased’s estate originally granted to deceased’s brother-in-law, Ronald Caldwell, who has since died – Ronald Caldwell remains the registered proprietor of estate’s principal asset, a property in Caringbah – plaintiffs make reasonable attempts to search for, but cannot find, Ronald Caldwell’s executor – whether plaintiffs or another suitable person should be appointed as administrators of the deceased’s estate.
Legislation Cited: Conveyancing Act 1919, s 32(1)
Imperial Acts Application Act 1969 (NSW), s 13
Probate and Administration Act 1898 (NSW), ss 33,
40, 63, 74, 75
Real Property Act 1900, s 93
Trustee Act 1925 (NSW), ss 6, 70
Cases Cited: Burke v Dawes (1938) 59 CLR 1
Crowle Foundation v NSW Trustee and Guardian [2010] NSWSC 647
Darrington v Caldbeck (1990) 20 NSWLR 212
Drummond v Registrar of Probates (SA) (1918) 25 CLR 318
Firns v Firns [2000] NSWSC 396
Hamilton v Hamilton (1913) 33 WN (NSW) 46
In the Estate of French [1910] P 169
In the Estate of Slattery (1909) 9 SR (NSW) 577
In the Goods of William Bridger (1878) 4 PD 77
In the Will and Codicil of Robert De Little [1883] 9 VLR (IP & M) 32
Letterstedt v Broers [1884] App Cas 371
Maddock v Registrar of Titles (Vic); Miller v Registrar of Titles (Vic) (1915) 19 CLR 681
Re Pratt (Deceased) (1963) 80 WN (NSW) 1416 Wangford v Wangford (1704) 1 Salk. 299
Texts Cited: K Mason and L G Handler, Succession Law and Practice NSW (1985, Butterworths), [1181.4.3]
G Weir, “Administration de bonis non” (1936) 10 ALJ
13
J R Martyn and N Caddick QC, Williams, Mortimer & Sunnucks on Executors, Administrators and Probate (20th ed 2013, Sweet & Maxwell)
Category: Procedural and other rulings
Parties: First Plaintiff: Eve Anne Kilby
Second Plaintiff: Blaire Louise Kilby
Third Plaintiff: Gail Jensen
Defendant: n/a
Representation:
Counsel

Plaintiffs: L. Judge
Solicitor
Plaintiffs: Carolyn Demaine, Demaine & Associates
Defendants: n/a

File Number(s): 2016/201656
Publication restriction: No

Judgment

The plaintiffs are beneficiaries of the estate of the late Stanley Henry Kilby, who died in July 1978. The deceased left a will dated 15 December 1967 appointing his brother-in-law, Ronald Caldwell, as the executor of his estate. Probate of the deceased’s will was granted to Ronald Caldwell on 9 April 1979.
Ronald Caldwell died in November 2004 before the whole of the deceased’s estate was administered. But no one can find Ronald Caldwell’s executor, if he ever appointed one. The plaintiffs now seek orders that they,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Re Kilby and Ors

Details

AGLC: Re Kilby [2016] NSWSC 1433
Case: [2016] NSWSC 1433
Decision Date: 07 October 2016

CaseChat Overview and Summary

The plaintiffs in this case, comprising three individuals who are the deceased's daughter and two granddaughters, sought to have themselves appointed as administrators of the estate of their deceased relative. The estate in question includes a property located in Caringbah, which remains in the possession of Ronald Caldwell, the deceased’s brother-in-law, who was initially granted probate of the estate but has since passed away. The plaintiffs sought to have the estate administered on the basis that they had made reasonable efforts to locate Ronald Caldwell's executor without success. The central legal issue before the court was whether the plaintiffs, or another suitable individual, should be appointed as administrators of the estate due to the unavailability of the initial executor.

The court was tasked with determining the appropriate course of action given that the initial executor of the estate had died and the plaintiffs could not locate his successor. The court had to consider whether the plaintiffs' efforts to find the executor were reasonable and if their appointment as administrators was warranted. The court examined the circumstances under which an administrator could be appointed in the absence of an existing executor and whether the plaintiffs met the criteria for such an appointment.

In resolving the matter, the court found that the plaintiffs had indeed made reasonable attempts to locate the executor of Ronald Caldwell's estate. Given that no executor could be found, the court concluded that the plaintiffs were suitable candidates for the role of administrators of the deceased's estate. The court determined that the plaintiffs' appointment was in the best interests of administering the estate and ensuring the distribution of the assets according to the deceased's wishes. Consequently, the court ordered that the plaintiffs be appointed as administrators of the estate, thereby facilitating the proper administration and distribution of the estate's assets.

Orders